Transgender case going over to the Fall

Both sides in the high-profile case testing the rights of transgender students joined on Wednesday in proposing a schedule that would stretch out appeals court review until September, or later. That would delay the time when the case of G.G. v. Gloucester County School Board might return to the Supreme Court.

At the center of the case involving a 17-year-old transgender youth in a small Virginia town is whether a 1972 federal civil rights law that bans discrimination “on the basis of sex” (Title IX) protects against bias based on gender identity. The Virginia youth, Gavin Grimm, was designated a girl at birth but has grown to identify as a boy. He has been denied equal access to the boys’ restrooms at his high school. He must use alternative facilities either for his only his use or single occupancy stalls.

Gavin’s lawyers had wanted the U.S. Court of Appeals for the Fourth Circuit to hold a hearing on his case in May so that the court could reach a decision before the youth graduated from high school on June 10. The Circuit Court refused this week to set an expedited process.

After May has passed, the Circuit Court will not again hold hearings until a scheduled sitting from September 12-15. Given the dates that the two sides proposed for filing legal briefs in the case – a process that would begin on May 8 and finish on June 2 – September would be the earliest that a hearing could be held, unless a rare summer hearing were set up. Even if the hearing is held at the September sitting, the three-judge panel reviewing the case probably would take several weeks to make a decision.

The case had been accepted by the Supreme Court for review during the current term, but the Justices sent it back to the Circuit Court in Richmond to consider the Trump Administration’s decision not to continue to follow the Obama Administration policy of enforcing Title IX’s ban on discrimination to protect legal equality in education for transgender students. (Title IX applies to education programs that receive federal funds, which almost all schools and colleges do.)

Actually, the Trump Administration has not announced just what its view on the scope of Title IX is going to be, saying only that it is pondering that issue while not enforcing the Obama Administration approach.

The Circuit Court does not necessarily have to consider whatever view the Trump Administration develops on the law’s meaning, because the basic issue is how to interpret Title IX and the federal government is not a direct party in the case. At an earlier stage of the case, however, the Obama Administration did provide support for Gavin Grimm’s claim against his county school board. It is entirely likely that, in coming weeks or months, the Trump Administration will take a formal stand, and let the Circuit Court know what that is.

Lawsuits are developing around the nation on transgender rights under Title IX as well as under other federal civil rights laws, so it is unclear which transgender case or cases could reach the Supreme Court first. Clearly, though, the Gavin Grimm case is the best-known and has had a huge following across the country. After the Supreme Court granted review of the case, on an appeal by the Gloucester County School Board seeking to undo a victory for Gavin in the Circuit Court, the case had drawn 61 friend-of-court briefs seeking to shape a decision by the Justices.

The case got as far in the Supreme Court as the scheduling of a hearing for March 28 before the eight Justices, but that was cancelled when the court on March 6 sent the case back to the Richmond court to reconsider.

The Circuit Court had ruled in Gavin’s favor largely by relying upon the Obama Administration’s view of what Title IX covers. With the arrival of the Trump Administration, that court can no longer base a ruling on the Obama approach. The three-judge panel can make their own interpretation of Title IX or, if the Trump government does file its new view, decide whether to rely on that approach.

When a transgender case, this one or others, reach the Supreme Court, the court will have nine Justices, with the arrival this week of Justice Neil M. Gorsuch. When the Gloucester County case was before the eight Justices, there was at least a hint that they might split 4-to-4 on a decision.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.